Federal Register: September 2, 2003 (Volume 68, Number 169)
Rules and Regulations               

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4, 16, 141 and 157

[Docket No. RM03-6-000; Order No. 643]

 
Amendments to Conform Regulations With Order No. 630 (Critical 
Energy Infrastructure Information Final Rule)

July 23, 2003.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises the Federal Energy Regulatory 
Commission's regulations requiring companies to make information 
directly available to the public under certain circumstances. The 
revisions are necessary to conform these regulations to Order No. 630, 
which established guidelines for the handling of Critical Energy 
Infrastructure Information (CEII). In Order No. 630, the Commission 
determined that it must take steps to restrict the availability of 
sensitive information about the nation's energy infrastructure so as to 
reduce the possibility of terrorist attacks. In doing so, the 
Commission explained that CEII would be exempt from disclosure under 
the Freedom of Information Act (FOIA). The order set out a definition 
of CEII and established procedures for persons with a legitimate need 
for such information to follow in seeking access to it. Order No. 630 
only covered information submitted to or prepared by the Commission. 
The revisions in this final rule address instances in which the 
Commission's rules and regulations require companies to make 
information available directly to the public. The revisions are 
necessary to ensure that protection of CEII is consistent in both 
contexts.

EFFECTIVE DATE: The rule will become effective October 23, 2003.

FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Office of General 
Counsel, Federal Energy Regulatory Commission, 888 First Street, NW., 
Washington, DC 20426, (202) 502-8953.

SUPPLEMENTARY INFORMATION: Before Commissioners: Pat Wood, III,

[[Page 52090]]

Chairman; William L. Massey, and Nora Mead Brownell.

I. Introduction

    1. This final rule makes specific changes to the Commission's 
regulations that require companies to make certain information 
available directly to the public. The changes are necessary to 
reconcile those regulations with Order No. 630, which established 
standards and procedures for the handling of Critical Energy 
Infrastructure Information (CEII) submitted to or created by the 
Commission. 68 FR 9857 (Mar. 3, 2003); III FERC Stats. & Regs. ] 31,140 
(Feb. 21, 2003). Because Order No. 630 addressed only situations in 
which a person might seek access to CEII that is in the Commission's 
possession, further changes to ensure consistent treatment and 
protection of CEII are needed where companies possess CEII and are 
required by the Commission's regulations to make it available to the 
public unconditionally.
    2. This final rule revises the Commission's regulations in the 
following areas: (1) 18 CFR part 4, which requires that applicants for 
hydropower licenses, permits, and exemptions make various types of 
information available to the public; (2) 18 CFR part 16, which requires 
that applicants for projects subject to sections 14 and 15 of the 
Federal Power Act, 18 U.S.C. 807-808, make specified information 
available to the public; (3) 18 CFR 141.300, establishing requirements 
for filing FERC Form No. 715, Annual Transmission Planning and 
Evaluation Report, which requires that portions of the form be made 
available to the public by the public utility upon request; and (4) 18 
CFR part 157, which governs applications for certificates of public 
convenience and necessity, and for orders permitting and approving 
abandonment under Section 7 of the Natural Gas Act.

II. Background

    3. As explained in the Notice of Proposed Rulemaking (NOPR), 68 FR 
18538, 18540 (Apr. 21, 2003), IV FERC Stats. & Regs. ] 32,569 (Apr. 9, 
2003), Order No. 630 arose from the Commission's concern that CEII 
could be employed by terrorists to engineer attacks against the 
nation's energy facilities. The Commission had previously taken steps 
to remove various categories of documents that were likely to contain 
CEII from public availability through the internet, the Federal Energy 
Regulatory Records Information System (FERRIS), and the Commission's 
public reference room. 68 FR at 9858. Order No. 630 reaffirmed that 
conclusion and established that the Commission would institute 
procedures to protect CEII submitted to it. Id.
    4. Order No. 630 defined CEII in Sec.  388.113(c)(1) of the 
Commission's regulations as information about proposed or existing 
critical infrastructure that:
    (i) Relates to the production, generation, transportation, 
transmission, or distribution of energy;
    (ii) Could be useful to a person in planning an attack on critical 
infrastructure;
    (iii) Is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. Sec.  552; and
    (iv) Does not simply give the location of the critical 
infrastructure. 68 FR at 9870. The order defined ``critical 
infrastructure'' in Sec.  388.113(c)(2) as:

existing and proposed systems and assets, whether physical or 
virtual, the incapacity or destruction of which would negatively 
affect security, economic security, public health or safety, or any 
combination of those matters.
Id.

    5. Order No. 630 adopted a process for submission of CEII to the 
Commission that largely parallels the process for submission of 
confidential materials in Section 388.112 of the Commission's 
regulations. That section now provides that an entity submitting CEII 
to the Commission is responsible for identifying and marking CEII with 
the legend ``Contains Critical Energy Infrastructure Information--Do 
Not Release.'' Information identified as CEII is placed in a nonpublic 
file, with the Commission retaining the right to make a determination 
whether CEII treatment has been properly claimed. The submitter is 
notified in the event any person or entity requests release of the 
CEII, and also prior to any release of the information being made. 68 
FR at 9870.
    6. To handle requests for release of CEII, Order No. 630 
established the position of CEII Coordinator. A person desiring access 
to CEII must file a written request with the CEII Coordinator 
containing the following information:

    Requester's name, date and place of birth, title, address, and 
telephone number; the name, address, and telephone of the person or 
entity on whose behalf the information is requested; a detailed 
statement explaining the particular need for and intended use of the 
information; and a statement as to the requester's willingness to 
adhere to limitations on the use and disclosure of the information 
requested. Requesters are also requested to include their social 
security number for identification purposes.

68 FR at 9870-71.\1\ The CEII Coordinator will consider the requester's 
need for the information, as well as the information's sensitivity. In 
the event the request is granted, the CEII Coordinator may impose 
conditions upon the requester's use of the information, including the 
requirement that the requester sign a non-disclosure agreement. 
Determinations by the CEII Coordinator are subject to rehearing under 
Sec.  385.713 of the Commission's regulations. Id. at 9870.
---------------------------------------------------------------------------

    \1\ In an order on rehearing of Order No. 630 being issued 
concurrently, the Commission has added the requirement that these 
requests be signed by the requester.
---------------------------------------------------------------------------

    7. The Commission issued the final rule on February 21, 2003. 68 FR 
9857 (Mar. 3, 2003), III FERC Stats. & Regs. ] 31,140 (Feb. 21, 2003). 
In doing so, it recognized that its regulations in some areas require 
companies to make information that might constitute CEII available 
directly to the public. Because Order No. 630 addressed only CEII in 
the possession of the Commission, this situation created a window of 
vulnerability whereby CEII that would be protected under Order No. 630 
could become available to persons of malicious intent. This final rule 
is intended to close that window. 68 FR at 18540.

A. The NOPR

    8. The NOPR identified the following portions of the Commission's 
regulations as provisions that might require the disclosure of CEII:
Electric Transmission Provisions
    FERC Form No. 715, Annual Transmission Plan and Evaluation Report, 
contains information that will likely constitute CEII. For example, 
part 2 requires power flow data, part 3 requires system maps and 
diagrams, and parts 4 and 5 require transmission planning data. The 
instructions to the form require submitting companies to make it 
available to the public upon request. 68 FR at 18540.
Natural Gas Provisions
    Several provisions of part 157, which governs applications for 
certificates of public convenience and necessity and for orders 
permitting and approving abandonment, require that information be made 
available to the public that might constitute CEII. Information such as 
flow diagrams and gas supply data must be supplied on request to 
intervenors and made available in central locations in the project 
area. These provisions are found in 18 CFR 157.5(d), 157.10(b), 
157.22(e)(3)-(4), and 157.203(d). 68 FR at 18540.

[[Page 52091]]

Hydropower Provisions
    Part 4, which governs licenses, permits, exemptions and other 
applications under the Federal Power Act, requires that applicants make 
various types of information about their projects available to the 
public, including items such as detailed maps and scientific studies. 
Specifically, under 18 CFR 4.32(a)(3), an applicant for a preliminary 
license, permit or exemption must provide notification to affected 
property owners. Under Sec.  4.32(b)(3)-(4), an applicant must make a 
copy of the application and exhibits available to the public for 
inspection and copying at specified locations. Under Sec. Sec.  
4.34(i)(4)(i) and 4.34(i)(6)(iii), an applicant using alternative 
procedures must distribute an information package and maintain a public 
file of all relevant documents. Finally, under Sec.  4.38(g), which 
provides for pre-filing consultation in the case of an original 
license, the applicant must make available for public inspection 
various items, including detailed maps and design information. 68 FR 
18540. In addition, part 16 of the Commission's hydropower regulations, 
which specifies procedures for takeover and relicensing of existing 
projects, contains notice provisions that require applicants to make 
items such as drawings, diagrams and emergency action plans available 
for public inspection. Such provisions are found at 18 CFR 16.7(d)-(e) 
and 16.8(i). 68 FR 18540
    9. The NOPR also proposed to revise several sections that require 
information possibly constituting CEII to be made available to Indian 
tribes and other government agencies. Such provisions are found at 18 
CFR 4.32(b)(1)-(2), 4.38(b)(1), 4.38(c)(4), 4.38(d), 16.8(b)(1), 
16.8(c)(4), and 16.8(d). As explained in the NOPR, the Federal Records 
Act, 44 U.S.C. 3510(b), does not require one federal agency to accord 
the same treatment to information as another federal agency where the 
former receives the information directly from a third party. 
Consequently, to ensure consistent treatment of CEII, the Commission 
proposed to add provisions for instances where information must be 
provided to other agencies and to tribes that would parallel the 
proposed provisions applicable to information made available to the 
public. The Commission noted that its proposed revisions would not 
prohibit a company from sharing CEII with a government agency, but 
would only ensure that the Commission's regulations did not require it 
to disclose CEII. 68 FR 18541.
    10. The changes proposed by the NOPR were intended to parallel the 
treatment of CEII under Order No. 630. The NOPR proposed that a company 
required by the affected regulations to make available information that 
might constitute CEII would make a determination whether the 
information was in fact CEII. If it was, the company would omit the 
CEII from the information being made available and instead include a 
brief statement describing the omitted information without revealing 
CEII, and informing the reader of his or her right to challenge the 
omission through submission to the CEII Coordinator under the 
procedures adopted in Order No. 630 and found in 18 CFR 388.112 and 
388.113. The NOPR added that companies would be expected to adhere to 
previous determinations made by the Commission or the Coordinator with 
respect to specific information. 68 FR 18541.
    11. The Commission issued the NOPR on April 9, 2003, and ultimately 
received twelve comments.\2\
---------------------------------------------------------------------------

    \2\ A list of commenters is appended to this order.
---------------------------------------------------------------------------

B. Related Orders

    12. The Commission on this date is issuing two other orders that 
have some bearing on this rulemaking. As noted, one is the order on 
rehearing from Order No. 630. The other is a final rule, in RM02-16, 
revising the Commission's hydropower licensing procedures. The 
hydropower revisions contain provisions requiring companies to make 
information available to the public that may constitute CEII. 
Consequently, the licensing rulemaking is adding a provision to 18 CFR 
part 5 that will parallel the revisions made in this Final Rule.

III. Discussion

    13. Some of the comments supported the proposals in the NOPR in 
whole or in large part.\3\ Disagreements or suggestions centered on 
several areas.
---------------------------------------------------------------------------

    \3\ MidAmerican Energy Company at pp. 1-3; PJM Interconnection, 
L.L.C. at pp. 2-3; Southern California Edison at pp. 1-2.
---------------------------------------------------------------------------

A. Availability of Needed Information

    14. Some commenters expressed concern that the NOPR, if adopted, 
would restrict market opportunities and interfere with other interests 
by keeping information away from persons with a legitimate need for it. 
One commenter expressed significant concerns that the NOPR would 
interfere with the operation of the electric market by making it 
difficult for market participants to obtain needed data.\4\ For 
example, the Study Group was concerned that information would become 
unavailable from OASIS;\5\ that transmission owners would selectively 
withhold Form No. 715 information, resulting in discrimination;\6\ that 
industry councils would be unable to obtain information for studies and 
models, or that some companies would be unable to obtain the studies or 
models themselves;\7\ and that intervenors would be unable to obtain 
needed information in a timely fashion.\8\ The Study Group specifically 
contends that the Commission should enunciate and enforce a 
comparability standard to ensure equal access to information.\9\ It 
also suggests a system under which CEII owners would be required to 
accept OASIS passwords, identification numbers employed by regional 
councils, or certifications made by regional transmission organizations 
(RTOs) as proof that a person was a suitable recipient. Any dispute 
would be appealable to the CEII Coordinator.\10\
---------------------------------------------------------------------------

    \4\ American Public Power Association & Transmission Access 
Policy Study Group (Study Group) at pp. 6-20.
    \5\ Id. at 6.
    \6\ Id. at 7-9.
    \7\ Id. at 10-18, 21.
    \8\ Id. at 18-20.
    \9\ Id. at 21.
    \10\ Id. at 22-23.
---------------------------------------------------------------------------

    15. Other comments expressed similar concerns. One commenter stated 
that the use of the word ``shall'' in the proposed regulations might 
lead companies to believe that they were prohibited from disclosing 
CEII voluntarily.\11\ The Bonneville Power Administration (BPA) noted 
that the Commission cannot prohibit it from disclosing information 
pursuant to statutory requirements such as the Freedom of Information 
Act (FOIA) and the National Environmental Policy Act (NEPA).\12\ The 
Department of Interior (Interior) expressed concern that its access to 
information pursuant to its own statutory authorities might be 
hampered.\13\
---------------------------------------------------------------------------

    \11\ Consumers Energy Company at pp. 2-3.
    \12\ BPA, at p. 2.
    \13\ Interior at pp. 1-3.
---------------------------------------------------------------------------

    16. The Commission believes that these concerns are misplaced. As 
the Commission stated in the NOPR, neither the revisions proposed there 
nor in Order No. 630 is intended to require companies to withhold CEII, 
or to prohibit voluntary arrangements for sharing information. These 
revisions are intended only to ensure that the Commission's regulations 
do not require the disclosure of CEII. 68 FR 18541. There is nothing in 
these revisions that affects one entity's ability to reach appropriate 
arrangements for sharing CEII and the Commission in fact encourages 
such arrangements. In many

[[Page 52092]]

cases, companies and persons that have had dealings with one another in 
the past will be in a better position than the Commission to judge the 
security of such an arrangement. There is thus nothing in these 
revisions that would, for example, prevent a regional council from 
obtaining data from member companies or from sharing it both with 
member and non-member companies. Nevertheless, in new Sec. Sec.  
4.32(k)(4), 16.7(d)(4), 141.300(d)(4), and 157.10(d)(4) of the 
Commission's regulations, the Commission has added language to the 
revisions to make as it as clear as possible that its CEII regulations 
do not prohibit or restrict voluntary disclosures of information 
pursuant to private arrangements.
    17. With respect to the specific concerns raised by these 
commenters, the Commission does not believe such concerns are 
justified. Nothing in these revisions, or in Order No. 630 for that 
matter, addresses OASIS in any way and there should be no impact on it. 
The revisions made in this final rule apply only to specific sections 
and do not cover the Commission's regulations generally; the Commission 
has decided against including a ``catch-all'' provision, as suggested 
by one commenter,\14\ so as to avoid such unwanted consequences. The 
Commission also does not believe companies should be disadvantaged in 
obtaining Form No. 715 data. As Form No. 715 is an annual report, its 
timing can be anticipated and gaining access to CEII contained in it 
should be possible in a timely manner. Most likely, the same entities 
will seek access every year, so that permission in most cases will be 
quickly granted. The Commission's numerous statutory mandates are 
undergirded by principles of non-discrimination (i.e., comparability). 
Thus, these revisions contemplate that all persons with a legitimate 
need for CEII will be able to gain access to it with a minimum of 
difficulty. The revisions already envision and intend to provide 
comparable treatment in access to CEII.
---------------------------------------------------------------------------

    \14\ National Hydropower Association at p. 6.
---------------------------------------------------------------------------

    18. The Commission understands the Study Group's concern that CEII 
owners might discriminate in making information available to market 
participants, but believes that its concern may be premature. Failure 
to provide required Form No. 715 data would be a violation of the 
Commission's regulations, even without the changes to the regulations 
effected by this rule and Order No. 630. The Commission remains 
responsible for ensuring that companies comply with its regulations, 
and the Commission will not tolerate abuses. Nor does the Commission 
believe that this final rule will necessarily do anything to enhance a 
CEII owner's ability to engage in such abuses. Form No. 715 data must 
still be submitted in full to the Commission. Should a company fail to 
disclose the data fully to a requester that has been granted access to 
CEII, that failure would be easy to identify. Furthermore, the 
Commission anticipates that companies such as the Study Group's members 
will have little trouble, and experience little delay, in obtaining 
such access. Finally, the Commission wishes to emphasize again that 
this final rule affects only those informational provisions that are 
specifically listed here. It does not apply generally across the 
industries that the Commission regulates. In the case of the electric 
market, no requirements are being affected in any way other than Form 
No. 715.
    19. The Study Group recommended several suggestions to facilitate 
access to CEII consistent with security concerns. Their concern is that 
whatever process ultimately adopted by the Commission is reliable, non-
discriminatory and easy to use. While we share the Study Group's 
concerns with the need to facilitate access, we continue to believe 
that the process contained in the final rule is sufficiently 
straightforward and should operate quickly in situations involving 
access to Form No. 715 data. Moreover, by employing standards set by 
outside entities in determining whether to grant access to CEII under 
the Commission's regulations, the Study Group's proposals would have 
the undesirable effect of requiring the Commission to monitor approval 
processes employed by these organizations to ensure that they provided 
sufficient security.
    20. With respect to access and dissemination of information by 
entities such as BPA and Interior, it goes without saying that the 
Commission lacks authority to override obligations imposed by statute 
or regulation. Clearly, this final rule cannot, and is not intended to, 
prevent agencies from complying with the FOIA or NEPA, or to prevent 
persons or companies from complying with lawfully enacted regulations 
that require the provision of information. Finally, the question of 
intervenors obtaining information in a timely fashion was addressed in 
Order No. 630. 68 FR 9866.

B. Approval Process

    21. Several commenters expressed concerns about the process for 
handling requests for access to CEII. Some believed that the process 
for approval would be too slow and suggested changes to speed it up. 
Some recommended a pre-approval process.\15\ One commenter suggested 
that CEII owners be required to provide CEII to persons with OASIS 
passwords, or that regional transmission organizations be able to 
certify customers for access automatically.\16\ Another suggested a 
process whereby a requester must first go to the company, then file a 
request with the Coordinator.\17\ One commenter requested assurance 
that the Commission will not place requests for access on separate 
tracks, the point presumably being that there should not be a ``slow 
track.'' \18\
---------------------------------------------------------------------------

    \15\ Interior at pp. 1-2; Consumers Energy Company at pp. 3-6; 
Study Group at pp. 23-24.
    \16\ Study Group at p. 22.
    \17\ National Hydropower Association at pp. 3-4.
    \18\ Northern Natural Gas at pp. 5-6.
---------------------------------------------------------------------------

    22. Some of the comments about the approval process concerned the 
handling of CEII. One suggested that a CEII owner be required to notify 
everybody on the service list when information is determined not to be 
CEII.\19\ One asked the Commission to establish a time limit in which a 
CEII owner must provide information once a request for access has been 
granted.\20\ Another suggested that the Commission employ standardized 
non-disclosure agreements, and that it specify that a recipient, once 
granted access to CEII, be permitted to use it for ongoing business 
activities, such as a consultant with more than one client.\21\ The 
Study Group also asked the Commission to clarify that, once a requester 
is granted access, it may communicate directly with the CEII owner.\22\ 
One commenter asked that the Commission establish guidelines for the 
Coordinator to follow, and suggested that CEII owners be involved in 
any negotiations over non-disclosure agreements.\23\ Finally, one 
commenter requested that the Coordinator perform a monitoring role 
intended to determine whether companies are making required information 
available. This commenter stated that outsiders to the system cannot 
tell what information is being withheld.\24\
---------------------------------------------------------------------------

    \19\ Interior at p. 3.
    \20\ Northern Natural Gas at p. 4.
    \21\ Study Group at pp. 22-23.
    \22\ Id. at 24.
    \23\ PJM Interconnection, L.L.C. at pp. 3-5.
    \24\ Southwest Transmission Dependent Utility Group at pp. 1-2.
---------------------------------------------------------------------------

    23. All of the above comments address the approval process 
generally and, thus, are not appropriate for consideration as part of 
this docket. The NOPR proposed to follow the approval

[[Page 52093]]

process already established in Order No. 630 and stated that the 
Commission would not revisit issues already addressed in that order. 68 
FR 18541. The procedures and guidelines for requesting and obtaining 
access to CEII, and for challenging CEII designations, were addressed 
at length in Order No. 630. This included timeliness, verification 
issues, standards for granting access, and the viability of a pre-
approval process. Id. at 9863-65. Some of these issues are addressed 
again in the order on rehearing being issued concurrently. The 
Commission will not revisit these issues here.
    24. Some clarification is, however, required with respect to 
several of these suggestions. The Commission does not have separate 
tracks for CEII access requests. There also is nothing in the 
Commission's regulations to prevent a requester from directly 
contacting a CEII owner, either before or after access is granted. 
Finally, the Commission does not believe it would be practical for the 
CEII Coordinator to perform a monitoring role. For the most part, the 
Commission's various regulations requiring that regulated companies 
make information available rely on voluntary compliance, regardless of 
whether CEII is involved. The Commission does not believe that the risk 
of a company simply flouting the regulations is any greater when CEII 
is involved than it has ever been. Existing mechanisms for dealing with 
companies that do not comply with their legal responsibilities should 
suffice in such situations.
    25. This rule, as well as Order No. 630, represents the 
Commission's best efforts to achieve a delicate balance between the due 
process rights of interested persons to participate fully in its 
proceedings and its responsibility to protect public safety by ensuring 
that access to CEII does not facilitate acts of terrorism. The 
Commission believes that it has struck an appropriate balance; however, 
it intends to monitor the experiences under these two rules to ensure 
that it has done so. Therefore, in six months the Commission will 
solicit public comment to determine whether submitters or requesters of 
CEII are experiencing any problems with the new processes.

C. Miscellaneous Issues

    26. The Interstate Natural Gas Association of America (INGAA) 
suggests that the Commission include 18 CFR 157.18 in the provisions 
being revised in this final rule.\25\ That section governs applications 
to abandon facilities or service and requires the applicant to file 
exhibits, including material, such as flow diagrams and detailed 
location information, that likely would include CEII. 18 CFR 157.18(c) 
and (g). The section includes only filing requirements, however, rather 
than requirements that information be made available to the public. 
Consequently, any CEII that the section requires be disclosed should 
already be covered by Order No. 630.
---------------------------------------------------------------------------

    \25\ INGAA at pp. 2-3.
---------------------------------------------------------------------------

    27. One commenter states that the use of the term ``landowner'' in 
proposed 18 CFR 157.6(d)(6) is too restrictive.\26\ The revision as 
proposed in the NOPR referred to situations where the regulation might 
require disclosure of CEII ``to a landowner.'' The notification 
provision is worded more broadly to require notification to ``affected 
landowners and towns, communities, and local, state and federal 
governments and agencies.'' 18 CFR 157.6(d)(1). The Commission thus has 
replaced the phrase ``to a landowner'' with ``to any person.''
---------------------------------------------------------------------------

    \26\ Northern Natural Gas at p. 3.
---------------------------------------------------------------------------

    28. The Commission received a suggestion that it establish 
procedures specifying how and where information denied CEII treatment 
must be made available.\27\ The Commission considers this unnecessary 
and potentially confusing, because different situations may be 
presented depending on the exact context. If a request that information 
be treated as CEII is rejected, then the underlying requirement to 
disclose the information remains operative and, absent any other 
provision or direction from the Commission, the owning company must 
comply as promptly as practicable.
---------------------------------------------------------------------------

    \27\ Id. at 4-5.
---------------------------------------------------------------------------

    29. The National Hydropower Association comments that the 
Commission should include a provision stating that a company may 
withhold information considered to be CEII even though it was made 
publicly available before the Commission enacted these revisions.\28\ 
The Commission agrees with the underlying principle, but considers an 
explicit provision unnecessary. Neither Order No. 630 nor this final 
rule contains any provision requiring that CEII be disclosed because it 

was previously disclosed. In fact, as noted in Order No. 630, the 
Commission went to considerable effort to remove from its Web site 
documents that previously had been available to the public. 68 FR 9858. 
Absent an explicit provision requiring previously available CEII to 
remain available, the logical and intended conclusion is that such 
information may be removed or made unavailable.
---------------------------------------------------------------------------

    \28\ National Hydropower Association at p. 6.
---------------------------------------------------------------------------

    30. The National Hydropower Association also comments that a 
company owning CEII should not be required to make the information 
available to one requester solely because it was made available to 
another requester.\29\ The Commission has already indicated its 
agreement with this principle. Order No. 630 explained that access is 
to be determined on a case-by-case basis. 68 FR 9864. The fact that one 
person or organization has been determined not to present a security 
risk obviously does not mean that a different person or organization 
would not do so. The Commission cautions owners of CEII, however, that 
it will not tolerate abuse of these revisions designed to discriminate 
against competitors or otherwise adversely affect competition in the 
energy markets. The revised rules are intended solely to enable owners 
of CEII to prevent information from getting into a terrorist's hands.
---------------------------------------------------------------------------

    \29\ National Hydropower Association at p. 5.
---------------------------------------------------------------------------

    31. INGAA expresses concern over the provision in 18 CFR 157.10(d) 
requiring treatment of CEII to adhere to previous determinations, 
because companies may not be aware of previous determinations.\30\ This 
should rarely be a problem because in most instances the previous 
determination will involve information owned by the same company. 
Nevertheless, the Commission has added the phrase ``to the extent 
practicable'' to new Sec. Sec.  4.32(k)(2), 16.7(d)(2), 141.300(d)(2), 
and 157.10(d)(2).
---------------------------------------------------------------------------

    \30\ INGAA at pp. 3-4.
---------------------------------------------------------------------------

    32. Except as discussed above, the Commission adopts the proposed 
revisions to its regulations.

Information Collection Statement

    33. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule. 5 CFR 1320.12. The public disclosure of information 
originally supplied by an agency to the recipient is, however, excluded 
from the coverage of the regulations. 5 CFR 1320.3(c)(2). The only 
information collection requirement contained in this final rule is a 
requirement that companies include a statement outlining the procedures 
for seeking access to CEII. Because that statement would be supplied by 
the Commission, the information collection regulations do not apply to 
this final rule.

[[Page 52094]]

Environmental Analysis

    34. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment. Order No. 
486, Regulations Implementing the National Environmental Policy Act, 52 
FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ] 
30,783 (1987). The Commission has categorically excluded certain 
actions from this requirement as not having a significant effect on the 
human environment.
    Included in the exclusion are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This 
rule is procedural in nature and therefore falls under this exception; 
consequently, no environmental consideration is necessary.

Regulatory Flexibility Act Certification

    35. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 
Sec. Sec.  601-612, generally requires a description and analysis of 
final rules that will have significant economic impact on a substantial 
number of small entities. The Commission is not required to make such 
analyses if a rule would not have such an effect. The Commission 
certifies that this proposed rule, if finalized, would not have such an 
impact on small entities.

Document Availability

    36. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    37. From FERC's Home Page on the Internet, this information is 
available in the Federal Energy Regulatory Records Information System 
(FERRIS). The full text of this document is available on FERRIS in PDF 
and WordPerfect format for viewing, printing, and/or downloading. To 
access this document in FERRIS, type the docket number excluding the 
last three digits of this document in the docket number field.
    38. Assistance is available for FERRIS and the FERC's Web site 
during normal business hours. Contact FERC Online Support at 
[email protected] or toll free at (866)208-3676, or for TTY, 
contact (202)502-8659.

Effective Date

    39. These regulations are effective October 23, 2003. The 
provisions of 5 U.S.C. 801 regarding Congressional review of final 
rules do not apply to this final rule, because the rule concerns agency 
procedure and practice and will not substantially affect the rights of 
non-agency parties.

List of Subjects

18 CFR Part 4

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 16

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 141

    Electric power, Reporting and recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements.

    By the Commission.
Magalie R. Salas,
Secretary.



0
In consideration of the foregoing, the Commission amends Parts 4, 16, 
141 and 157, Chapter I, Title 18, Code of Federal Regulations, as 
follows:

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT 
COSTS

0
1. The authority citation for part 4 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.

0
2. Section 4.32 is amended by adding paragraph (k) to read as follows:


Sec.  4.32  Acceptance for filing or rejection; information to be made 
available to the public; requests for additional studies.

* * * * *
    (k) Critical Energy Infrastructure Information. (1) If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined in Sec.  388.113(c) of this chapter, to 
any person, the applicant shall omit the CEII from the information made 
available and insert the following in its place:
    (i) A statement that CEII is being withheld;
    (ii) A brief description of the omitted information that does not 
reveal any CEII; and
    (iii) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 
388.113. Requests for access to CEII should be made to the Commission's 
CEII Coordinator.''
    (2) The applicant, in determining whether information constitutes 
CEII, shall treat the information in a manner consistent with any 
filings that applicant has made with the Commission and shall to the 
extent practicable adhere to any previous determinations by the 
Commission or the CEII Coordinator involving the same or like 
information.
    (3) The procedures contained in Sec. Sec.  388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a request for 
access to CEII. If it is determined that information is not CEII or 
that a requester should be granted access to CEII, the applicant will 
be directed to make the information available to the requester.
    (4) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling 
for the disclosure of CEII.

0
3. Section 4.34 is amended by adding paragraph (i)(9) to read as 
follows:


Sec.  4.34  Hearings on applications; consultation on terms and 
conditions; motions to intervene; alternative procedures.

* * * * *
    (i) Alternative procedures.
* * * * *
    (9) If this section requires an applicant to reveal Critical Energy 
Infrastructure Information (CEII), as defined by Sec.  388.113(c) of 
this chapter, to any person, the applicant shall follow the procedures 
set out in Sec.  4.32(k).

0
4. Section 4.38 is amended by adding paragraph (h) to read as follows:


Sec.  4.38  Consultation requirements.

* * * * *
    (h) Critical Energy Infrastructure Information. If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec.  388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec.  
4.32(k).

PART 16--PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF 
LICENSED PROJECTS

0
5. The authority citation for part 16 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.


[[Page 52095]]



0
6. Section 16.7 is amended by adding paragraph (d)(7) to read as 
follows:


Sec.  16.7  Information to be made available to the public at the time 
of notification of intent under section 15(b) of the Federal Power Act.

* * * * *
    (d) Information to be made available. * * *
    (7)(i) If paragraph (d) of this section requires an applicant to 
reveal Critical Energy Infrastructure Information (CEII), as defined in 
Sec.  388.113(c) of this chapter, to any person, the applicant shall 
omit the CEII from the information made available and insert the 
following in its place:
    (A) A statement that CEII is being withheld;
    (B) A brief description of the omitted information that does not 
reveal any CEII; and
    (C) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 
388.113. Requests for access to CEII should be made to the Commission's 
CEII Coordinator.''
    (ii) The applicant, in determining whether information constitutes 
CEII, shall treat the information in a manner consistent with any 
filings that applicant has made with the Commission and shall to the 
extent practicable adhere to any previous determinations by the 
Commission or the CEII Coordinator involving the same or like 
information.
    (iii) The procedures contained in Sec. Sec.  388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a request for 
access to CEII. If it is determined that information is not CEII or 
that a requester should be granted access to CEII, the applicant will 
be directed to make the information available to the requester.
    (iv) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling 
for the disclosure of CEII.
* * * * *

0
7. Section 16.8 is amended by adding paragraph (j) to read as follows:


Sec.  16.8  Consultation requirements.

* * * * *
    (j) Critical Energy Infrastructure Information. If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec.  388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec.  
16.7(d)(7).

PART 141--STATEMENTS AND REPORTS (SCHEDULES)

0
8. The authority citation for part 141 continues to read as follows:

    Authority: 15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31 
U.S.C. 9701; 42 U.S.C. 7101-7352.


0
9. Section 141.300 is amended by adding paragraph (d) to read as 
follows:


Sec.  141.300  FERC Form No. 715, Annual Transmission Planning and 
Evaluation Report.

* * * * *
    (d) Critical Energy Infrastructure Information. (1) If the 
instructions in Form No. 715 require a utility to reveal Critical 
Energy Infrastructure Information (CEII), as defined in Sec.  
388.113(c) of this chapter, to any person, the utility shall omit the 
CEII from the information made available and insert the following in 
its place:
    (i) A statement that CEII is being withheld;
    (ii) A brief description of the omitted information that does not 
reveal any CEII; and
    (iii) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 
388.113. Requests for access to CEII should be made to the Commission's 
CEII Coordinator.''
    (2) The utility completing Form No. 715, in determining whether 
information constitutes CEII, shall treat the information in a manner 
consistent with any filings that utility has made with the Commission 
and shall to the extent practicable adhere to any previous 
determinations by the Commission or the CEII Coordinator involving the 
same or like information.
    (3) The procedures contained in Sec. Sec.  388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a request for 
access to CEII. If it is determined that information is not CEII or 
that a requester should be granted access to CEII, the utility will be 
directed to make the information available to the requester.
    (4) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling 
for the disclosure of CEII.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
10. The authority citation for part 157 continues to read as follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.


0
11. Section 157.6 is amended by adding paragraph (d)(6) to read as 
follows:


Sec.  157.6  Applications; general requirements.

* * * * *
    (d) Landowner notification.
* * * * *
    (6) If paragraph (d)(3) of this section requires an applicant to 
reveal Critical Energy Infrastructure Information (CEII), as defined by 
Sec.  388.113(c) of this chapter, to any person, the applicant shall 
follow the procedures set out in Sec.  157.10(d).

0
12. Section 157.10 is amended by adding paragraph (d) to read as 
follows:


Sec.  157.10  Interventions and protests.

* * * * *
    (d) Critical Energy Infrastructure Information. (1) If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined in Sec.  388.113(c) of this chapter, to 
the public, the applicant shall omit the CEII from the information made 
available and insert the following in its place:
    (i) A statement that CEII is being withheld;
    (ii) A brief description of the omitted information that does not 
reveal any CEII; and
    (iii) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 
388.113. Requests for access to CEII should be made to the Commission's 
CEII Coordinator.''
    (2) The applicant, in determining whether information constitutes 
CEII, shall treat the information in a manner consistent with any 
filings that applicant has made with the Commission and shall to the 
extent practicable adhere to any previous determinations by the 
Commission or the CEII Coordinator involving the same or like 
information.
    (3) The procedures contained in Sec. Sec.  388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a

[[Page 52096]]

request for access to CEII. If it is determined that information is not 
CEII or that a requester should be granted access to CEII, the 
applicant will be directed to make the information available to the 
requester.
    (4) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling 
for the disclosure of CEII.

0
13. In Sec.  157.14, paragraph (a) introductory text is amended by 
adding the following sentence at the end, to read as follows:


Sec.  157.14  Exhibits.

    (a) To be attached to each application. * * * If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec.  388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec.  
157.10(d).
* * * * *

0
14. In Sec.  157.16, the introductory text is amended by adding the 
following sentence at the end to read as follows:


Sec.  157.16  Exhibits relating to acquisitions.

    * * * If this section requires an applicant to reveal Critical 
Energy Infrastructure Information (CEII), as defined by Sec.  
388.113(c) of this chapter, to any person, the applicant shall follow 
the procedures set out in Sec.  157.10(d).
* * * * *

0
15. Section 157.22 is amended by adding paragraph (e)(9) to read as 
follows:


Sec.  157.22  Collaborative procedures for applications for 
certificates of public convenience and necessity and for orders 
permitting and approving abandonment.

* * * * *
    (e) * * *
    (9) If paragraphs (e)(3) or (e)(4) of this section require an 
applicant to reveal Critical Energy Infrastructure Information (CEII), 
as defined by Sec.  388.113(c) of this chapter, to any person, the 
applicant shall follow the procedures set out in Sec.  157.10(d).
* * * * *

0
16. Section 157.203 is amended by adding paragraph (d)(4) to read as 
follows:


Sec.  157.203  Blanket certification.

* * * * *
    (d) Landowner notification. * * *
    (4) If paragraphs (d)(1) or (d)(2) of this section require an 
applicant to reveal Critical Energy Infrastructure Information (CEII), 
as defined by Sec.  388.113(c) of this chapter, to any person, the 
applicant shall follow the procedures set out in Sec.  157.10(d).

    Note: The following appendix will not be published in the Code 
of Federal Regulations.

Appendix--List of Commenters

American Public Power Association and Transmission Access Policy 
Study Group
Bonneville Power Administration
Consumers Energy Company
Interstate Natural Gas Association of America
ISO New England
Mid-American Energy Company
National Hydropower Association
Northern Natural Gas
PJM Interconnection, L.L.C.
Southern California Edison
Southwest Transmission Dependent Utility Group
United States Department of the Interior

[FR Doc. 03-19606 Filed 8-29-03; 8:45 am]

BILLING CODE 6717-01-P



PDF Version